99-003451 Department Of Children And Family Services vs. Happy Days Day Care Status: Closed Recommended Order on Monday, May 22, 2000.

Summary: Child care facility personnel inappropriatly punished children. Facility personnel were not adequately screened.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-3451

)

HAPPY DAYS DAY CARE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Notice was provided and on February 17, 2000, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes. The hearing location was the City Hall, 151 Southeast

Osceola Avenue, Ocala, Florida. The hearing was conducted by

Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ralph McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785-8158

For Respondent: Edward L. Scott, Esquire

409 Southeast Fort King Street

Ocala, Florid a 34471-2239

STATEMENT OF THE ISSUE

Should the Department of Children and Family Services, (the

Department), impose discipline against the license of Happy Days

Day Care owned by Carmen Smith upon grounds set forth in the

Administrative Complaint dated July 15, 1999?

PRELIMINARY STATEMENT

Carmen Smith contested the administrative complaint by

requesting a hearing in accordance with Chapter 120, Florida

Statutes. The Department referred the case to the Division of

Administrative Hearings to conduct a hearing to resolve disputed

facts. Section 120.57(1), Florida Statutes. Following one

continuance the case was heard on the aforementioned date.

The Department presented Karen Merton, Michelle Parr, Marsha

Carpenter and Maria Vazquez as its witnesses. The Department's

Composite Exhibit numbered 1 and Exhibits numbered 2 through 7

were admitted as evidence. Carmen Smith testified and presented

Lynn-Anne Morin and Patricia Mann as her witnesses. Carmen

Smith's Exhibit's numbered 3, 4, and 7A through 7MM were admitted

as evidence. Ruling was reserved on the admission of Carmen

Smith's Exhibit numbered 6, pending review by the Department's

counsel. Carmen Smith's Exhibit numbered 6 is admitted.

A hearing transcript was filed on March 28, 2000. Whe n the

hearing concluded the parties were informed that proposed

recommended orders could be filed 20 days from the filing of the

transcript, which made the due date for filing April 17, 2000.

The Department moved to extend the time for filing proposed

recommended orders to April 27, 2000. That motion was unopposed.

The parties were orally informed that proposed recommended orders

could be filed by April 27, 2000. By their agreement to extend

the deadline for filing proposed recommended orders beyond 10

days after the filing of the hearing transcript, the parties have

waived the necessity to enter the recommended order within 30

days after the hearing transcript was filed. Section 28-106.216,

Florida Administrative Code. Proposed recommended orders timely

filed by the parties have been considered.

FINDINGS OF FACT

Licensure

1. Carmen Lamb Howard Smith owns a child care facility

(facility) in Ocala, Florida. The Department licenses that

facility according to Sections 402.301 through 402.319, Florida

Statutes. The facility is known as Happy Days Day Care.

Food Services

2. The facility provides child care around the clock.

3. The children are normally served dinner at the facility

until 8:00 p.m. each day. Until 7:30 a.m. the following morning

no other food is served to the children. Notwithstanding the

policy not to provide food after 8:00 p.m., a child who is

brought to the facility will be fed after 8:00 p.m. when that

child has not eaten and is in distress. Ordinarily a parent

leaving a child with the facility after dinner time would be

expected to feed the child before the child was left with the

facility.

4. The food schedule at the facility has posted that there

are "no exceptions" to the policy not to provide food beyond 8:00

p.m.

5. As an example of the exception concerning not providing

food after 8:00 p.m., if a child has been to a doctor's

appointment or come from the hospital or the like, that child

would be fed after 8:00 p.m. Another example is that if the

child had been receiving Gatorade before coming to the facility,

and Gatorade is available, the child is provided Gatorade by the

facility.

6. Children kept at the facility at night retire for bed

between 8:45 p.m. and 9:00 p.m.

7. Children are provided water before retiring for the

evening.

8. During July 1999 approximately 35 children were staying

at the facility after 9:00 p.m. After 10:00 p.m. 22 to 26

children were cared for at the facility. After midnight

approximately six children remained at the facility. The

children who remained overnight were children of parents who

worked between 11:00 p.m. and 7:00 a.m.

9. Infants who are cared for in the facility receive a

snack between breakfast and lunch. Children of other ages

receive a snack between lunch and dinner.

Hiring Practices

10. Persons who are hired by the facility to care for

children are referred to as teachers.

11. At times relevant to the inquiry, before a teacher was

hired, Patricia Mann as Director of Happy Days Day Care, would

interview the prospective employee. Ms. Mann would send the

prospective employee to be fingerprinted. The prospective

employee would be sent to the local police station to get an I.D.

and to have the local police department perform a check to see if

that person has a criminal history. The information obtained by

those persons concerning their background would be brought back

to Ms. Mann to be placed in an individual file for the employee.

Employee files were maintained by the facility at times relevant

to the inquiry.

12. Ms. Mann also reminded prospective employees of the

need to receive tuberculosis (TB) tests.

13. Ms. Smith, the facility owner, reviewed applications

for employment during the time in question, paying particular

attention to the experience that the applicants had in child

care.

14. Marsha Carpenter works for the Department as a Family

Services Counselor. Additionally, Ms. Carpenter has

responsibility for licensing child care facilities. In that

capacity she inspects facilities to determine compliance with

licensing standards.

15. On May 27, 1999, Ms. Carpenter reviewed employee files

at the facility to determine compliance with background screening

and other requirements which employees must meet to work in the

facility. She discovered that a number of employees did not have

the background screening complete. Having identified this

inadequacy, the facility was provided 14 days' notice to correct

the deficiencies. Patricia Mann signed the inspection checklist

that noted these deficiencies. Ms. Mann's signature was provided

on the date the inspection took place.

16. More than 14 days passed before re-inspection. The re-

inspection was conducted on June 24, 1999. Upon re-inspection it

was determined that not all the deficiencies observed on May 27,

1999, had been corrected. Petitioner's Exhibit numbered 6

admitted into evidence lists the employees and the continuing

items of non-compliance that had existed on May 27, 1999 and

June 24, 1999. The missing items related to backgr ound

screening, local law enforcement checks, TB test results, and

employment history. Ms. Patricia Mann was made aware of these

findings and provided a copy of the continuing deficiencies in

relation to the areas of concern.

17. The previously mentio ned employees cared for children

at the facility without completing required background screening

and obtaining TB tests.

18. Notwithstanding the expectation by Ms. Mann that those

employees would comply with the legal conditions prerequisite to

their employment, this was not done.

Boyfriend Visits

19. Some members of the night time staff at the facility

allowed their boyfriends to visit while the staff was on duty to

supervise children. The administration at the facility

reprimanded the staff for this misconduct. Ms. Smith promptly

met with the staff following discovery of the problem and

conducted a staff meeting. Ms. Smith prepared a document

addressed "To All Staff" reminding staff that the facility had a

policy that states, "if you don't work there, you can't visit

there unless you have children there. If you are not a parent,

or a worker or you don’t have any business there, you don't have

any business being there." Beyond the meeting Ms. Smith has not

been informed that the problem of night time visits by boyfriends

persists.

Inappropriate Discipline

20. It had been reported that Rogenia Thomas, who cared for

children from ages 6 to 13 years at the facility, slapped a child

in the face and pinched another child. No other adult was

present when these events were alleged to have transpired.

Ms. Thomas denied the incidents in conversation with Ms. Mann.

Nonetheless, Ms. Mann suspended the employee for three days as

evidenced in an employee warning report dated June 8, 1999.

Petitioner's Exhibit numbered 7. That report reflects that

Ms. Thomas was told that if the incident happened again she would

be terminated. At the time Ms. Thomas was on probation,

according to the report. Following the three-day suspension

Ms. Thomas was not allowed fu ll-time contact with children; she

only had contact with children at times when other teachers took

breaks. That contact was with children age six weeks through

five years. Later, for reasons that are unexplained in the

record, Ms. Thomas was terminated.

21. Viola Rayam was a teacher at the facility who cared for

children six weeks through 13 years old. Complaints were made

that Ms. Rayam had cursed a child in her charge. Ms. Rayam in

conversation with Ms. Mann denied the incident. The record does

not reveal that the alleged incident was observed by anyone other

than the child. Ms. Rayam was suspended for a week and a half

based upon the accusations. After the incident that led to the

one and a half week suspension Ms. Rayam was allowed to care for

children six weeks to five years old. Ms. Smith terminated

Ms. Rayam from employment at the facility for an unrelated

matter.

22. Although Ms. Thomas and Ms. Rayham denied the

allegations concerning misconduct, the administrators in the

facility imposed in-house discipline to assuage any concerns

which the Department had about the alleged misconduct.

23. None of the children alleged to have been victimized by

the conduct attributed to Ms. Thomas and Ms. Rayam testified at

hearing.

24. It was not proven that the alleged acts of misconduct

by Ms. Thomas and Ms. Rayam took place.

25. Karen Merton works for the Department as a Family

Services Counselor in the adoption unit. Sometime around

June 10, or 11, 1999, she visited the facility. It was a hot

day. While outside Ms. Merton observed a facility staff member

sending some children to what the staff member called "time-out."

These children were being sent from the shade afforded by the

facility building to sit in the sun for "time-out." There were

three or four children involved. One was a blond-haired, fair-

skinned little girl whom Ms. Merton estimated to be a first or

second grader. By the time Ms. Merton departed the scene, the

little girl had been standing in the sun for approximately 15

minutes. Before Ms. Merton left the facility she reminded a

person located at the front of the facility that the little girl

had been outside in the sun for about 15 minutes. That person

walked outside observed the child and stated "Oh," remarking that

this person knew the child. The person at the front of the

facility where Ms. Merton had signed in then returned to her

station in the facility without taking action concerning the

little girl's circumstance. Ms. Merton then left the facility.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

27. The Department bears the burden to prove by clear an d

convincing evidence the allegations in the Administrative

Complaint directed to Carmen Smith as owner of Happy Days Day

Care. 1/ See also Section 120.57(1)(j), Florida Statutes.

28. Paragraph 2 of the administrative complaint states the

following:

Happy Days Child Care has violated sec.

402.305(8), Fla. Stat. And Rule 65C-22.005,

F.A.C. by failing to provide nutritious meals

and snacks of a quality and quantity to meet

the nutritional needs of the children in its

care. This is particularly true with regard

to children at night, as no meals or even

snacks are provided between about 8:00 p.m.

and 7:30 a.m., regardless of when children

are left after the facility's cutoff on food

about 8:00 p.m.

29. Section 402.305(8), Florida Statutes:

NUTRITIONAL PRACTICES.-- Minimum standards

shall include requirements for the provision

of meals or snacks of a quality and quantity

to assure that the nutritional needs of the

child are met.

30. In pertinent part Rule 65C-22.005, Florida

Administrative Code, states:

Food and nutrition

(1) Nutrition.

(a) If a facility chooses to supply food,

they shall provide nutritious meals and

snacks of a quantity and quality to meet the

daily nutritional needs of the children.

(b) If a facility chooses not to provide

meals and snacks, arrangements must be made

with the custodial parent or legal guardian

to provide nutritional food for the child.

(c) If a special diet is required for a

child by a physician, a copy of the

physician's order, a copy of the diet, and a

sample meal plan for the special diet shall

be maintained in the child's facility file.

(d) Meal and snack menus shall be planned,

written, and posted at the beginning of each

week. Menus shall be dated and posted in the

food service area and in a conspicuous place

accessible to parents. Any menu substitution

shall be noted on the menu.

* * *

(3) Food Service.

(a) Children shall be individually fed or

supervised at feeding and offered food

appropriate for their ages.

* * *

31. The facts found do not establish violations of Section

402.305(8), Florida Statutes, and Rule 65C-22.005, Florida

Administrative Code.

32. Paragraphs 3 and 4 of the Administrative Complaint

state the following:

3. Staff at the facility have subjected

children to inappropriate and non-

constructive discipline in violation of sec.

402.305(12), Fla. Stat. And 65C-22.001(8),

F.A.C. Inappropriate discipline has

included:

a. cursing and shouting at children;

b. pinching children;

c. Striking furniture and equipment with a

plastic bat in an intimidating manner;

d. making children stand in the hot sun for

extended periods;

e. making children stand with their arms

outstretched or over their heads for extended

periods; and

e. punishing children for accidents in

toileting.

4. Although the owner and director were

aware that staff members had cursed and

shouted at children and pinched children, the

staff members involved were transferred from

supervising the school age children who can

speak up for themselves to supervising

infants and toddlers who cannot speak up if

abused or neglected.

33. Section 402.305(12), Florida Statutes, states:

(12) CHILD DISCIPLINE.--

(a) Minimum standards for child discipline

practices shall ensure that age-appropriate,

constructive disciplinary practices are used

for children in care. Such standards shall

include at least the following requirements:

1. Children shall not be subjected to

discipline which is severe, humiliating, or

frightening.

2. Discipline shall not be associated with

food, rest, or toileting.

3. Spanking or any other form of physical

punishment is prohibited.

(b) Prior to admission of a child to a child

care facility, the facility shall notify the

parents in writing of the disciplinary

practices used by the facility.

34. Rule 65C-22.001 (8), Florida Administrative Code,

states the following:

Child Discipline.

(a) Verification that the child care

facility has provided, in writing, the

disciplinary practices used by the facility

shall be documented on the enrollment form,

with signature of the custodial parent or

legal guardian.

(b) Each staff member of the child care

facility must comply with the facility's

written disciplinary practices.

(c) A copy of the facility's current written

disciplinary practices must be available to

the licensing authority to review for

compliance with s. 402.305(12), F.S.

35. It has not been shown that employees at the facility

cursed and shouted at children or pinched children, such that

Ms. Smith would be responsible as alleged in paragraph 3 at 3.a.

and 3.b. The discipline imposed by the facility upon the

suspicion that employees had engaged in misconduct does not prove

the misconduct. No other proof was presented to show that the

employees violated Section 402.305(12), Florida Statutes. Nor

has proof been shown that a violation occurred in relation to

Rule 65C-22.001(8), Florida Administrative Code, concerning

imposition of discipline in relation to the allegations made

about cursing and shouting at children and pinching children.

36. As alleged in paragraph 3.d., it was inappropriate

discipline to leave the children in the hot sun for "time-out,"

especially the one child who was left there for an extensive

period of time. Section 402.305(12)(a)1, Florida Statutes.

37. No other facts were proven concerning the alleged

violations in paragraph 3, at 3.c. and 3.e.

38. The allegations in paragraph 4 of the administrative

complaint do not form the basis for imposing discipline in

association with Section 402.305(12), Florida Statutes, and Rule

65C-22.001(8), Florida Administrative Code.

39. Paragraph 5 of the Administrative Complaint states the

following:

At night, staff members have allowed their

boyfriends, who have not been subject to a

background check, to enter and visit then

while they were supposed to be supervising

children.

40. Paragraph 6 of the Administrative Complaint states the

following:

Staff were sleeping at nights, or otherwise

unavailable or unable to provide the required

supervision for children and access for

parents. Parents must be allowed access in

person and by telephone to a facility at all

times a facility is in operation or their

children are in care. Rule 65C-22.011(9),

F.A.C.

41. Rule 65C-22.001(9), F lorida Administrative Code,

states:

(9) Access. A child care facility must

provide the custodial parent or legal

guardian access, in person and by telephone,

to the child care facility during the

facility's normal hours of operation or

during the time the child is in care.

42. No proof was offered concerning staff sleeping at

night. Staff members were otherwise unavailable or unable to

provide required supervision for children in the facility while

visiting their boyfriends. However, failure to supervise is not

addressed in Rule 65C-22.001(9), Florida Administrative Code. No

proof was presented on lack of access to parents.

43. Paragraph 7 of the Administrative Complaint states the

following:

New staff members were allowed to continue

working with children even though they had

not completed the background screening

requirements of Chapter 435, Fla. Stat. in a

timely fashion as required by ss. 402.305(2).

In addition, such required checks as

employment history and local law enforcement

checks were not completed. Employees were

also allowed to work without completing the

tuberculosis and health checks. As a result

of a complaint, Marsha Carpenter of

Department's staff went to the facility on

May 27, 1999 and reviewed employee records.

Numerous deficiencies were found which had

not been corrected on a follow up inspection

on June 24, 1999.

44. In pertinent part Section 402.305(2), Florida Statutes,

states:

PERSONNEL.--Minimum standards for child care

personnel shall include minimum requirements

as to:

(a) Good moral character based upon

screening. This screening shall be conducted

as provided in Chapter 435, using the level 2

standards for screening set forth in that

chapter.

* * *

(e) Periodic health examinations.

45. Section 435.04(1), Florida Statutes, describes Level II

screening standards where it states:

All employees in positions designated by law

as positions of trust or responsibility shall

be required to undergo security background

investigations as a condition of employment

and continued employment. For the purposes

of this subsection, security background

investigations shall include, but not be

limited to, employment history checks,

fingerprinting for all purposes and checks in

this subsection, statewide criminal and

juvenile records checks through the Florida

Department of Law Enforcement, and federal

criminal records checks through the Federal

Bureau of Investigation, and may include

local criminal records checks through local

law enforcement agencies.

4 6. Personnel within the facility were allowed to care for

children without complying with necessary background screening.

Additionally, TB test results were not obtained. These

oversights were discovered on May 27, 1999. Ms. Mann was

informed concerning the problem areas. When a re-inspection was

conducted at the facility on June 24, 1999, problems still

existed concerning background screening and TB tests.

47. For the violations in relation to paragraphs 3 and 7

within the Administrative Complaint, the license held by

Ms. Smith is subject to discipline. That discipline is in

accordance with opportunities set forth in Section 402.310(1)(a),

Florida Statutes, which states:

The department or local licensing agency may

deny, suspend, or revoke a license or impose

an administrative fine not to exceed $100 per

violation, per day, for the violation of any

provision of ss. 402.301-402.319 or rules

adopted thereunder. However, where the

violation could or does cause death or

serious harm, the department or local

licensing agency may impose an administrative

fine, not to exceed $500 per violation per

day.

48. Standards for the imposition of the discipline are set

forth in Section 402.310(1)(b), Florida Statutes, which states:

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation, including

the probability that death or serious harm to

the health or safety of any person will

result or has resulted, the severity of the

actual or potential harm, and the extent to

which the provisions of this part have been

violated.

2. Actions taken by the licensee to correct

the violation or to remedy complaints.

3. Any previous violations of the licensee.

49. No evidence was presented concerning attempts at

corrections for leaving the children in the sun as a means of

discipline. Corrections were not timely made concerning

background screening and health examinations.

50. As identified at the hearing the facility owner had

been fined $500.00 for the event in which the child was playing

unsupervised in a ditch near the facility mentioned in paragraph

1 of the Administrative Complaint. In another case discussed at

hearing, a child being transported in a van, operated by a staff

member at the facility was left unattended, exited the van and

was found at a restaurant. The van was undergoing shop repairs

at the time. For this violation an $1,100.00 administrative fine

was imposed.

51. For the violation described in paragraph 3.d. of the

Administrative Complaint, a $500.00 administrative fine is

warranted given the potential serious harm for the one little

girl left in the sun for an extended period of time and in view

of the past history of violations.

52. For the violations described in paragraph 7 of the

Administrative Complaint, given the serious nature of those

violations and the past violations, a one-month license

suspension is warranted.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered which imposes a $500.00

administrative fine for the violations in paragraph 3.d. and

imposes a one-month suspension for the violations in paragraph 7,

and dismisses the remaining alleged violations in the

administrative complaint.

DONE AND ENTERED this 22nd day of May, 2000, in Tallahassee,

Leon County, Florida.

___________________________________

CHARLES C. ADAMS

Admini strative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed wit h the Clerk of the

Division of Administrative Hearings

this 22nd day of May , 2000.

ENDNOTE

1/ Paragraph 1 to the administrative complaint accusing the

owner of violating Rule 65C-22.001(4) and (5), Florida

Administrative Code, for failure to supervise a child who was

found in the ditch outside the facility was effectively dismissed

during the hearing. The basis for dismissal was the realization

that this complaint had been resolved through the imposition of a

$500 administrative fine.

COPIES FURNISHED:

Ralph McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785-8158

Edward L. Scott, Esquire

409 Southeast Fort King Street

Ocala, Florida 34471-2239

Virginia Daire, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.